October 2010 Archives

Various jails have been on the news lately for being home to various sexual assaults and rapes. Similarly, a news story recently surfaced that college professors in Florida kept an off campus apartment specifically to bring young co-eds to. With all this sexual assault news, the questions arises, when can a victim recover money damages for a sexual assault or rape?

At the Fine Law Firm, our New Mexico sexual assault attorneys have handled numerous cases in which our clients were the victims of violent sexual attacks as well as inappropriate sexual relationships. In many of these New Mexico sexual assault cases, the questions is not so much whether the plaintiff can win, but rather whether the plaintiff can recover.

This is because unless the attacker has substantial assets, it is necessary to she that he or she performed inappropriate acts while acting in another capacity. Typically, this means sexual relationships between teacher and student, jail guard and inmate, police officer and suspect, etc... This means that in addition to numerous other factors, one primary issue is whether the wrongdoer has the ability to be financially responsible for the harm caused.

Airbags are now common place throughout the nation. We rely on airbags to protect us when the unthinkable happens. However, defective airbags can be just as harmful, if not more dangerous than no airbag at all.

Defective airbag lawsuits generally involve a limited series of claims. The airbag deployed with too much force, too little force, or it failed to deploy under the appropriate force. An experienced airbag attorney (not meant as a slur) is aware that such cases are often very technical and usually require an expert to study the vehicle as soon as possible to provide an opinion regarding what caused the airbag to deploy defectively, or fail to deploy all together.

Given the high costs that an attorney must front in defective airbag cases, the severity of injury is a major factor for product liability attorneys selecting which cases to pursue. However, if you or a loved one has been injured due to a defective airbag, it is wise to contact an attorney experienced in defective airbag litigation before allowing the vehicle to be moved, inspected, or repaired by an insurance company.

A freak semi truck accident recently claimed the life of a Bernalillo County Sheriff’s Deputy. The accident occurred when one vehicle apparently negligently pulled out of a gas station causing a semi truck to take evasive action. In doing so, the semi truck collided with the Bernalillo Sheriff Deputy’s unmarked car.

According to initial reports, the fatal car accident involving the deputy was caused by a German national in town for a local conference. This wrongful death accident not only claimed the valued life of a New Mexico law enforcement member, but was triggered by a simple lapse in attention.

One unique issue is whether, in an accident such as this, New Mexico law would apply to a wrongful death suit. As with any New Mexico wrongful death case there may be recovery available to the family of the victim, however, in this situation, the litigation may take a complex path through New Mexico law, truck accident law, and even German law.

For the time being, the New Mexico law enforcement community is left grieving the loss of one of its respected brothers.

New Mexico jail sexual abuse is at the forefront recently with KOB.com reporting that an MDC guard was discovered to have had a "sexual relationship" with an inmate. There is no such thing as a guard having a "sexual relationship" with an inmate. Under the laws of the country and this State, that is rape. There is no such thing as consensual sex between a guard and an inmate, period. As legislatures have universally agreed, a guard having a "sexual relationship" with an inmate is one the most abhorrent abuses of power in the long history of mankind. There are, however, procedural hurdles that powerful private prison lobbies have succeeded in placing between prison rape victims and the judicial system. If this has happened to you, or someone who looks to you for advice, contact an experienced prison abuse law firm.

Defective cribs, and other children’s products are some of the most scary recalls. Sadly, the users of these products lack the level of caution and reason we expect from adults or even older children. One new recall of dangerous and defective cribs highlights the dangers of what can occur when these products are not designed or built well.

The consumer product safety commission recently announced that 40,000 cribs are being recalled do to sides that can drop causing serious injury and even death. Since 2000, dropped sides in cribs have caused 32 deaths and are suspected in even more. Although this is a small number considering the millions of cribs sold during this same period, anyone will agree that a single death caused by a defective crib is too many.

The recall affects Ethan Allen, Angel Line, and Victory Land brand cribs. Hopefully the use of these dangerous crib are coming to an end as the CPSC passed a measure to ban drop-side cribs this past July.

New Mexico premises liability, or New Mexico slip and fall cases, whatever name they go by, they generally involve injury of a customer or guest that the property owner is responsible for. Most often these cases involve dangerous conditions or hazardous obstacles that cause injury. Generally, in these cases, it is necessary for the plaintiff to prove that the owner failed to keep the property reasonably safe for use by the visitor.

The New Mexico Supreme Court recently applied premises liability law to America’s pastime, a trip to the ballpark. The case arose when a young child was seated in a picnic area and was struck by a ball during batting practice. Although errant foul balls are commonplace in American ballparks, the plaintiff argued that the stadium should be held responsible for constructing an unprotected picnic area where people sit facing away from the field.

Initially, the District Court judge stated that what is affectionately known as the “baseball rule” applies requiring in limited duty of only screening out the areas immediately behind home plate. Accordingly, the case was dismissed.

On appeal, the New Mexico Supreme Court held that a baseball stadium is not allowed to simply protect the fans behind home plate to satisfy its legal obligation to spectators. At the same time, the Supreme Court did not say that the conduct by the baseball stadium was in fact negligence. Rather the court said that New Mexico’s typical approach to premises liability cases should apply to injuries at the ballpark. This means that the duty owed by this stadium is that of ordinary care to keep the premises reasonably safe for the visitor regardless of whether or not a dangerous condition his obvious. More importantly, the Supreme Court opinion means that this is an issue worthy of discussion before a jury.

As a baseball fan, I’m admittedly mixed. Alarmists will suggest that now all stadiums will be enclosed in glass, and that it is another example of plaintiff’s avoiding personal responsibility. By the same token, it seems reasonable to allow a jury to decide if it is negligent to hold parties where backs are turned to batting practice bombs flying over walls.

Obviously, the most important settlement consideration to the plaintiff in a personal injury case is his/her net recovery. Therefore, the plaintiff's attorney must understand the role of the various parties who make a claim against the settlement proceeds. The plaintiff's net recovery is enhanced by proper handling of these claims. In addition, the plaintiff must be aware of the potential consequences of not handling these claims correctly.
Subrogation arises between an insurer and its insured, allowing the insurer to recover payments against the person who caused the loss. Subrogation “allows an insurer who has fully compensated the insured to step into the shoes of the insured and collect what it has paid from the wrongdoer.” Amica Mut. Ins. Co. of Ariz. v. Maloney, 120 N.M. 523, 527, 903 P.2d 834, 838 (1995). Subrogation arises “by operation of law.” Safeco Ins. Co. of America v. U.S. Fid. & Guar. Co., 101 N.M. 148, 149, 679 P.2d 816, 817 (1995). Subrogation also arises in the suretyship context. See NM State Highway & Transp. Dep’t v. Gulf Ins. Co., 2000-NMCA-007, ¶11, 128 N.M. 634, 996 P.2d 424.

New Mexico has applied subrogation principles only in disputes involving insurers. Gulf Insurance Co. v. Cottone, 2006-NMCA-150, ¶11, 140 N.M. 728, 148 P.3d 814. Cottone arose from a chain reaction auto accident. A person injured in the accident sued (only) a driver, insured by Gulf Insurance Co. Gulf then sought reimbursement from others allegedly at fault for the accident. Gulf argued it became subrogated to the claims of the injured party when it settled with her. The court rejected this attempt to expand the concept of subrogation, which traditionally has been limited to insurance companies that had paid their own insureds. The reasons for this rejection were (1) the doctrine of comparative fault meant that Gulf had only paid damages by which its insured was responsible and, therefore, had no claim against the other parties, (2) New Mexico does not allow an assignment of personal injury claims, and (3) the release signed by the injured party did not release anyone other than Gulf’s insured.
An insurance company providing uninsured or underinsured motorist coverage is entitled to reimbursement out of the proceeds of any recovery which might be obtained from the person(s) responsible for the accident (the “tortfeasors”). See NMAC, Dept. of Insurance Regulations, §12.3.17.9.2. The company also has a subrogation right, and may sue the uninsured tortfeasor to recover any amounts it may have paid. Id, §12.3.17.9.4. The insured must cooperate in any subrogation suit brought by the carrier, and the carrier could compel joinder of an uncooperative insured to serve as an “involuntary plaintiff.” §12.3.17.9.11.
Special considerations apply in workers compensation cases. If the employer paid the premiums for the uninsured motorist coverage, reimbursement is handled normally. See Section 52-5-17C. (As a practical matter, most employers have figured out that they can opt not to have uninsured motorist coverage to cover their employees.) On the other hand, if the worker pays the premiums of the uninsured motorist coverage, the employee is not required to reimburse the workers’ compensation carrier. Id. Moreover, this subsection does not entitle the UM carrier to a credit or offset for the amount of workers’ compensation benefit paid to the worker. Mountain States Mut. Cas. Co. v. Vigil, 1996-NMCA-062, 121 N.M. 812, 918 P.2d 728.